Robert Heath v. Google Inc.

Filing 62

ORDER by Magistrate Judge Howard R. Lloyd re 55 , 56 , 57 , 58 Discovery Dispute Joint Report Nos. 1-4. DDJRs denied without prejudice. (hrllc2, COURT STAFF) (Filed on 3/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ROBERT HEATH and CHERYL
FILLEKES, on behalf of themselves and
others similarly situated,

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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NOS. 1-4

Plaintiffs,

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Case No. 5:15-cv-01824-BLF (HRL)

v.

Re: Dkt. Nos. 55, 56, 57, 58

GOOGLE INC., a Delaware corporation,
Defendant.
Rebert Heath and Cheryl Fillekes (hereafter: “plaintiffs”) sue Google, Inc., (“Google”) for

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violations of the Age Discrimination in Employment ACT (ADEA) 29 U.S.C. § 612, et seq., and

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the California Fair Employment and Housing Act (FEHA), Cal. Govt. Code § 12900, et seq.

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Plaintiffs, both over the age of 40, claim that Google gives preferential treatment to job applicants

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under 40 years of age, and that this policy or practice is systemically engrained throughout the

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company. Plaintiffs allege that they applied for jobs for which they were well qualified, but were

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not offered employment because of their age. The suit is brought as a collective action under 29

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U.S.C. § 216(b) on behalf of themselves, as well as applicants in the United States who were over

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40 and who were not hired, from August 13, 2010 to the present.

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DISCUSSION
Now before this court are Discovery Dispute Joint Reports (“DDJRs”) Nos. 1, 2, 3, and 4,

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which, pursuant to this court’s Standing Order Re: Civil Discovery Disputes (“SO”), were filed in

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lieu of noticed discovery motions. In these DDJRs, plaintiffs seek orders requiring Google to

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provide certain additional discovery that, they aver, was requested but improperly refused.

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Roughly speaking, the disputed discovery seeks extensive documentation about defendant’s hiring

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processes and procedures, as well as information about anyone who either approached Google or

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was approached by Google about potential employment. A pretty tall order.

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More specifically, DDJR #1 seeks an order compelling production of lots of documents

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from 40 “Hiring Committees” and records of government investigations and other lawsuits.

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DDJR#2 concerns a very sweeping interrogatory that asks for the identity and a long list of
particulars (including age) about anyone for the last five and a half years who inquired at, was

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United States District Court
Northern District of California

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contacted by, or applied for employment with Google. DDJR #3 is a fight about the scope of the

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kinds of questions that plaintiffs may put to a Google Fed. R. Civ. P. 30(b)(6) witness. DDJR #4

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complains about redactions on non-privileged documents Google produced.

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After years of hearing discovery motions that could and should have been avoided, the

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court adopted the SO. In many cases, discovery disputes are best resolved by the opposing

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lawyers working diligently and conscientiously together to reach some middle ground. The SO

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requires them to make their best effort to do just that. The SO establishes a procedure that begins

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with low level, informal contacts between the sparring lawyers, and advances ultimately to an in-

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person, face-to-face meeting between lead counsel. If the face-to-face does not produce

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agreement, then the parties may file a DDJR that describes the dispute and concludes with each

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side offering its final and “most reasonable” proposal for how the court should decide.

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Although the SO requires that lead counsel include in a DDJR an attestation that they

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compiled with the SO, only plaintiffs’ counsel made that attestation. Not only did defendant’s

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lead counsel not make the attestation, he did not sign any of the DDJRs. (Another lawyer signed

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for defendant.)

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More troubling, both sides ignored the requirement that lead counsel meet in person.

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(Indeed, it is not clear what involvement, if any, lead counsel had in the various telephone

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negotiations over discovery issues that are alluded to in the DDJRs.) Both sides cavalierly seem to
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believe that their footnote telling the court that their offices are 3000 miles apart suffices to excuse

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the face to face meeting. They either failed to read or simply decided to ignore the SO language

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that told them that an in-person meeting was so important that: “Except in extreme circumstances,

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excuses such as press of business, inconvenience, or cost will not suffice.” The SO even

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explained how a site for the face-to-face meeting would be selected if they could not agree on it.

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No one approached the court urging an “extreme circumstance[ ]”.
In addition, neither side set out at the conclusion of their arguments, their “…final and

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‘most reasonable’ proposal for how the court should decide.” True, there were one or two offered

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concessions in the body of the arguments, but the parties barely budged from what they had been

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saying to each other all along.
The court denies, without prejudice, the four DDJRs for failure to comply with the SO. If

United States District Court
Northern District of California

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the plaintiffs wish the court’s assistance to pursue the discovery issues further, then they shall so

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advise defendant, and the parties are required to forthwith hold a proper lead-counsel-in-person

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meeting. (The consequences of failing to participate in the SO process is covered in the SO.) If

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that meeting does not resolve the discovery disputes, they may, in accord with the SO, within 5

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business days file, as needed, one or more DDJRs.1

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SO ORDERED.

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Dated: March 3, 2016

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HOWARD R. LLOYD
United States Magistrate Judge

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The court encourages plaintiffs to give serious consideration to sharply narrowing the breadth
and scope of their discovery requests and to address the question of how the discovery they seek
would tend to show that the age of job seekers was a factor in Google’s decision to either grant or
deny employment. On the other hand, the presiding judge has not ordered that certain discovery
must wait until after certification of the collective action. And, defendant should be cautious not
to be so stingy in what it agrees to produce that it looks like stonewalling. “Unreasonable burden”
excuses rarely carry the day absent convincing proof. Redacting portions of responsive documents
on the grounds of lack of relevance is a real stretch, as is (assuming a protective order in place)
withholding third party information on the basis of “privacy.”
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5:15-cv-01824-BLF Notice has been electronically mailed to:

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Anthony Craig Cleland [e-mail],
[e-mail]

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Daniel A. Kotchen

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Daniel Lee Low

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[e-mail], [e-mail]
[e-mail], [e-mail]

Dow Wakefield Patten

[e-mail], [e-mail]

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George S. Duesdieker

[e-mail], [e-mail]

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United States District Court
Northern District of California

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Jill Vogt Cartwright [e-mail], [e-mail],
[e-mail]
Thomas Michael McInerney [e-mail], [e-mail],
[e-mail]

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